The framers were mindful of the history of England and other nations which had court systems that were supposed to be fair, impartial, and independent of the crown.  Yet kings and queens and potentates would at best remove judges when their decisions were unsatisfactory.  At worst, they would jail or execute them, a fate which has befallen judges in some nations even today.

So the framers gave the federal courts independence from the elected, political powers in two ways. Judges were appointed for life during good behavior, and their salaries were guaranteed for life.  The intent was to allow judges to decide the case before them without fear of retaliation, even if the parties in the case or the judge’s decision were highly unpopular.

What the Constitution did not do, however, was to create a general court system with general jurisdiction.  This was not an oversight, but was deliberate.  The jurisdiction of the courts, like the powers of Congress, was limited, because general powers and general jurisdictions remained with the states.

The Constitution created only the Supreme Court, and did not specify how many justices it would contain.  So, over the years, the membership of the Supreme Court has varied from a low of five, to a high of ten.  The current number nine is merely a tradition, set by Congress in law.

The jurisdiction of the Supreme Court is created by the Constitution in Article III: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls...." The power is further defined in specific matters such as "states suing states."

The second clause of Section 2 of Article III is especially important, but often ignored.  "In all cases affecting ambassadors... and those in which a state shall be party, the Supreme Court shall have original jurisdiction.  In all the other cases..., the Supreme Court shall have appellate jurisdiction, ... with such exceptions, and under such regulations as the Congress shall make."

The Original Jurisdiction cases in the Supreme Court amount to about one per year.  They are filed directly in that court, have case numbers starting with O for Original, and many involve either litigation between states over Howard Hughes’ will or water use from the Colorado River.  These cases are half a percent of the court’s decided cases, and about one in 2,000 of the cases presented to the court each year.

No lower courts are required by the Constitution itself.  The federal district courts and circuit courts of appeal, and specialized courts such as tax appeals and foreign security matters, are all creatures of Congress, both to their existence and the extent of their jurisdiction.  As Section 1 says, they are "as the Congress may from time to time ordain and establish."

Since Congress controls the entire existence of the lower federal courts, and all but a small fraction of the jurisdiction of the Supreme Court, one would think that the Supreme Court would be unable to act consistently and on major issues, contrary to the will of the people as expressed by the members of Congress.  Thomas Jefferson, who was not a framer because he was ambassador to France when the Constitution was written, reviewed the finished document and foresaw a darker possibility in the federal courts as established.

He referred to them as "the most dangerous branch."  He wrote to his friend, John Eppes in 1807, "The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will."

In the ''Federalist, Number 78,'' Alexander Hamilton argued the opposite, that the federal courts were the "least dangerous branch," because they "may truly be said to have neither FORCE nor WILL, but merely judgment...."  In short, the courts had no ability to do more than decide the case before them, on the existing law.  Whether experience has proved Jefferson or Hamilton to be right, is the next subject.